Kiran Raj

The Supreme Court today continued hearing a batch of petitions challenging the Waqf (Amendment) Act, 2025, and recorded the Centre's assurance that no appointments will be made to the Waqf Boards or the Central and State Waqf Councils under Sections 9 and 14 of the Act while the matter is pending.

Appearing for the Union of India, Solicitor General Tushar Mehta made two key submissions during the hearing: (1) Non-Muslims would not be appointed to the Central Waqf Councils and State Waqf Boards in terms of the amended provisions while the case is being heard; and (2) Waqfs, including waqf-by-user, whether declared through notification or registration, would not be de-notified until the next date of hearing.

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The Supreme Court recorded the submissions as follows: "During the course of the hearing, Solicitor General states that the Union would like to put a response within 7 days. He further assures the Court that no appointments will be made to the Council and the Board under Sections 9 and 14. Till the next date of hearing, Waqf, including Waqf by user, already registered or declared by way of notification, shall neither be de-notified or the Collector will change. We take the statement on record."

A bench comprising Chief Justice of India Sanjiv Khanna, Justice Sanjay Kumar, and Justice KV Viswanathan scheduled the next hearing for May 5 at 2 PM. The Court also changed the cause title of the case to "In Re : Waqf Amendment Act."

At the start of the hearing, SG Mehta stated that staying legislation, directly or indirectly, is an extraordinary measure that cannot be taken based on tentative reading of provisions. "We have received lakhs and lakhs of representations which contributed to some of these amendments. Villages were taken as waqfs. Private properties were taken as waqfs. This affects a large number of innocent people," he said.

He added: "Your lordships are taking a serious and harsh step by staying directly or indirectly statutory provisions without proper assistance," and requested one week's time to produce relevant materials.

CJI Khanna responded: "Mr. Mehta, we have a particular situation. We pointed out certain infirmities. We also said there are some positive things. But we don't want the situation prevailing today to change so drastically that it affects the rights of the parties. There are provisions such as 5 years practice of Islam, we are not staying that. Yes, you are right. There is a thumb rule, that Courts won't stay legislations ordinarily. But there is another thumb rule, when the petition is pending before the Court, the situation which is prevailing should not change so that the rights of persons are not affected."

When SG Mehta repeated his request for more time, the CJI stated that time could be granted on the condition that non-Muslim members would not be nominated to the Waqf Boards and Central Waqf Council, and that registered Waqfs would not be altered. SG Mehta confirmed no such appointments would be made. However, CJI Khanna noted that SG Mehta could only make submissions on behalf of the Union and not the States, which are responsible for certain appointments. SG Mehta responded: "The Court can order that if any State makes such appointments, then it would be void."

In yesterday’s hearing, the Court had proposed to issue an interim order on three issues:

1. All properties declared by the Court as waqf, whether by user or deed, would not be de-notified during the pendency of this matter.

2. The proviso stating that waqf property will not be treated as such while the Collector determines its status would not be enforced.

3. All members of the Central Waqf Council and State Waqf Boards must be Muslim, excluding ex-officio members.

The Court raised several concerns, including:

• Whether all waqf-by-user properties have ceased to exist as waqf.

• The requirement to register centuries-old waqf-by-user properties, such as Jama Masjid in Delhi.

• Whether a property should lose waqf status during a government investigation into ownership.

• How the proviso to Section 2A could override judicial declarations of waqf properties.

• Whether the amended composition ensures a Muslim majority in Waqf Boards and Councils.

On Day 1 of the hearing, Senior Advocate Kapil Sibal led arguments for the petitioners, while SG Mehta represented the Union.

Sibal argued that the 2025 amendments are unconstitutional, particularly the removal of 'waqf by user' and the inclusion of non-Muslim members in Waqf Boards. He stated that many waqfs, such as Jama Masjid, were established by user and lack documentation. "They will ask us if there was a Waqf created 300 years ago, and to produce the deed. Many of these properties were created hundreds of years ago, and there won't be any documents," he said.

When SG Mehta began his response, CJI asked: "Are you now saying that waqf-by-user, even if established by judgments of the Courts or otherwise without dispute, are void now?" SG Mehta replied: "If registered, no (they will remain as waqf if they are registered)."

Sibal also highlighted the new provision stating that a disputed property's waqf status remains suspended until an official investigation is completed. CJI remarked that this, combined with the removal of waqf-by-user, created ambiguity.

CJI further questioned: "Is that fair?" referring to the provision that nullifies waqf status once the Collector begins a probe into whether the land is government property. SG Mehta replied that the use as a waqf would not stop, but the benefits associated with waqf status would be withheld during the probe.

Sibal also raised concerns about appointing non-Muslim members to Waqf bodies, calling it arbitrary interference in the religious administration of the Muslim community.

CJI Khanna questioned SG Mehta: "Mr Tushar Mehta, are you arguing that as far as the Hindu endowments or Hindu religious bodies are concerned, you will allow minorities, including Muslims to be a member of the Board or Council? Please say that very openly." SG Mehta cited the Joint Parliamentary Committee’s report and said that apart from ex-officio members, only two members would be non-Muslim. He also said that the current composition of the Board would remain until the end of its term.

Background:

Five BJP-led States—Assam, Rajasthan, Chhattisgarh, Uttarakhand, Haryana, and Maharashtra—have filed intervention applications in support of the amended law.

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Petitioners include AIMIM MP Asaduddin Owaisi, Delhi AAP MLA Amanatullah Khan, Association for Protection of Civil Rights, Jamiat Ulema-i-Hind President Arshad Madani, Samastha Kerala Jamiatul Ulema, Anjum Kadari, Taiyyab Khan Salmani, Mohammad Shafi, TMC MP Mahua Moitra, Indian Union Muslim League, All India Muslim Personal Law Board, RJD MP Manoj Kumar Jha, SP MP Zia ur Rehman, Communist Party of India, DMK, among others.

Common Provisions Under Challenge:

• Removal of 'waqf by user' provision

• Inclusion of non-Muslim members in Waqf Boards and Council

• Limiting women’s representation to two members

• Five-year practising Muslim requirement for waqf creation

• Dilution of waqf-alal-aulad

• Renaming the Waqf Act, 1995 to “Unified Waqf Management, Empowerment, Efficiency and Development”

• Provisions allowing government to challenge waqf status during encroachment disputes

• Application of the Limitation Act to Waqf proceedings

• Invalidating waqfs over ASI-protected monuments

• Restrictions on creating waqfs in scheduled areas

Case Title: ASADUDDIN OWAISI v. UNION OF INDIA

Case No.: W.P.(C) No. 269/2025 and others

Bench: Chief Justice Sanjiv Khanna, Justice Sanjay Kumar, and Justice KV Viswanathan